Violence Protection Act

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A Protection Against Violence Act aims to protect a person from all forms of violence in the private and domestic environment. Other legal systems pursue such acts of violence only within the framework of ordinary criminal law, e.g. B. as bodily harm or coercion . A new feature of the Violence Protection Act is that the person who is at risk of violence can be evicted from their home by the police, while the victim of domestic violence remains and does not have to seek refuge.

story

While violence in the family was treated as a private matter for a long time , in the 1990s the international recognition gained ground that acts of violence against women are human rights violations and that states are responsible for ending violence and protecting victims. 1993, adopted the UN General Assembly , the Declaration on the Elimination of Violence against Women . On February 2, 1996, Radhika Coomaraswamy , Special Rapporteur on Violence against Women , submitted the Framework for Model Legislation on Domestic Violence to the UN Commission on Human Rights . In 1997 the European Union launched a campaign to completely outlaw violence against women. The euro Council adopted on 11 May 2011, the Council of Europe Convention on preventing and combating violence against women and domestic violence .

Enforcement of domestic violence laws has since become the standard of policy in Western countries.

Austria

Austria was the first country in Europe to pass a law to protect against violence. The federal law on the protection against violence in the family - actually an amendment with which the penal code, the enforcement code, the civil procedure code etc. were changed - came into force in 1997. It protects all persons who have been affected by violence in the family, regardless of age, gender, marital status and relationship with the person who is at risk. The intention of the law is to give victims the opportunity to stay at home and protect them from violence. It is based on two legal and one social measure:

  • Ban on entry and removal to protect against violence ( Section 38a SPG ). The police are therefore obliged to evict a person who poses an acute risk to the health, life or freedom of others from their home. If a criminal act has already been committed, the police must also file a criminal complaint. In Austria all violent crimes are official crimes .
  • Immediate proactive help for victims through intervention agencies. In addition to protection against violence, intervention centers have been set up in every federal state to support the victims in many matters, such as risk assessment, livelihood security and the enforcement of rights.
  • Civil protection order (temporary injunction) for three months and longer. A victim of domestic violence can apply to the family court for an injunction to extend protection within ten days. This extends the eviction by the police to 20 days. During this time, the family court decides on the duration of protection.

The Austrian federal law on protection against violence in families was a role model in Europe. In 2009 it was amended by the 2nd Act on Protection against Violence (2nd GeschG) . Eviction, entry ban and the temporary injunction have been retained; however, the protection for the victims has largely been improved.

Between 1997 and 2011, 73,491 people were expelled from the police force for their violent behavior. 96 percent of them were male and 4 percent female.

In 2014, the “Psychosocial and legal process support for victims of violence in criminal and civil proceedings in Austria, 2006” was awarded the Silver Future Policy Award , which is presented by the World Future Council in Hamburg. At the 2014 awards ceremony, the World Future Council was concerned with “recognizing innovative approaches to ending violence against women and girls”.

Germany

Basic data
Title: Law on civil protection against acts of violence and stalking
Short title: Violence Protection Act
Shortcut: GewSchG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Private law
References : 402-38
Issued on: December 11, 2001
( Federal Law Gazette I p. 3513 )
Effective on: January 1, 2002
Last change by: Art. 2 G of 10 August 2021
( Federal Law Gazette I p. 3513, 3514 )
Effective date of the
last change: 		October 1, 2021
(Art. 3 G of August 10, 2021)
GESTA : C223
Weblink: Text of the law
Please note the information on the applicable legal version.

After the positive experience in Austria, a discussion began in Germany about an amendment to the police laws and civil law. The Violence Protection Act (GewSchG) is a German federal law that was enacted as Article 1 of the Act to improve civil court protection in the event of acts of violence and stalking and to facilitate the provision of marital homes in the event of separation and which came into force on January 1, 2002 .

Content of the law

Until the Law on Protection against Violence was passed, there was legal uncertainty in dealing with violence that occurred within relationships in the domestic or private environment ( domestic violence , harassment such as stalking ). In practice, the only option left was to intervene preventively via the general police clause (see also below ).

The Civil Law , in addition to the criminal law can help protect the victims, while offering ways to respond to acts of violence and unacceptable nuisance, absence but a specific legal basis for a claim to housing provision in violence in the home communities outside of marriage leads to unsatisfactory results . To the extent that, in accordance with Section 1361b (2) of the German Civil Code (BGB), the marital home is provided to one of the spouses if the spouses are separated in order to avoid “severe hardship”, judicial practice has shown that the threshold of “severe Hardness ”is too high. The enforcement of injunctive relief claims under procedural law is difficult - especially in urgent proceedings - due to numerous controversial legal issues. In addition, the enforcement of civil court decisions is not effective. The aim of the draft law is to eliminate the deficiencies described and thus improve civil protection in the event of acts of violence and unreasonable harassment.

On the one hand, the Violence Protection Act is intended to provide a clear legal basis for protective orders from the family court in the event of intentional and unlawful injuries to the body, health or freedom of a person, including the threat of such injuries. Protection orders in accordance with the Violence Protection Act are also possible in the event of certain unreasonable harassment. On the other hand, a basis for claims is created for the - at least temporarily - provision of a shared apartment if the injured person and the perpetrator live in a permanent household. The threshold for the transfer of the marital home in the case of separated spouses according to § 1361b BGB will be lowered.

In the event of bodily harm or serious threats, a ban on entering the apartment can be issued in accordance with Section 1 of the Violence Protection Act (GewSchG). Afterwards, people who have experienced domestic violence or are threatened by it no longer have to leave the household, seek refuge in a women's shelter or become homeless. You can now use an urgent order to enforce in court that the common apartment is temporarily or permanently assigned to you for sole use ( § 2 GewSchG). This should be done when the well-being of children living in the household is at risk. The possible allocation is no longer restricted to matrimonial apartments. It also applies to all long-term domestic communities. The hurdle, from when this allocation is possible, is lowered.

In the case of other harassment, such as telephone terrorism and other stalking (so-called stalking ), the family court can prohibit approaching the person concerned or his / her apartment, continuing to call him / her or harassing him / her in any other way ( § 1 para. 2 GewSchG). This also applies if there is no partnership between the perpetrator and the victim.

The law's procedural and enforcement law is designed in such a way that applicants can quickly and easily obtain protective measures. Irrespective of an application in the main proceedings, provisional legal protection is also possible. If an opponent violates the violence protection orders obtained in accordance with Section 1 of the GewSchG, he / she is liable to prosecution ( Section 4 of the GewSchG). In this case, the law provides for imprisonment of up to two years (up to 30 September 2021) or a fine. This means that the Protection Against Violence Act is part of ancillary criminal law . In addition to the criminal liability according to § 4 GewSchG, criminal liability can also occur according to other regulations (§ 4 sentence 2 GewSchG), such as crimes against sexual self-determination or bodily harm . § 4 GewSchG is an official offense , so that no referral to private legal action is possible.

However, in its decision of November 28, 2013 , the Federal Court of Justice stated that the court also checked the “substantive legality of the order and independently determined its factual requirements” in criminal proceedings due to criminal liability under Section 4 GewSchG. It is not bound by the “decision of the family court”. The violation of an order to protect against violence is therefore only punished if the order to protect against violence was rightly issued by the family court in the opinion of the criminal court.

criticism

In 2001, the criminologist Michael Bock criticized in a legal opinion on the draft law to improve civil court protection in the event of acts of violence that the law was too tailored to violence by men. His goal is not to fight domestic violence, "only male violence. Not all people living in a community or even marriage and family should be protected, but only women. "

According to the non-representative pilot study “Violence against men in Germany” from 2004 on behalf of the Federal Ministry for Family Affairs , a quarter (26 percent) of the men surveyed had experienced physical violence in some form within heterosexual partnerships.

Police measures

If there is imminent danger , the police can expel the perpetrator from the victim's environment (“eviction” or “ eviction ”) before a court order is available. Such a measure still has its basis in police law , not in the Protection Against Violence Act. Therefore, the admissibility, duration and scope of the so-called removal are based on the police law of the respective federal state.

Switzerland

Federal level

In terms of civil court protection, protection against violence, threats and stalking was introduced on July 1, 2007 in the Swiss Civil Code (ZGB). On April 1, 2004, the amendment to the Criminal Code (StGB) for the so-called officialization of violent crimes in marriage and partnership came into force.

Cantonal level

At the cantonal level, the cantons of Neuchâtel ( Loi sur la lutte contre la violence dans les relations de couple of March 20, 2004), Geneva ( Loi sur les violences domestiques of September 16, 2005), Zurich ( Protection against Violence Act [GSG] of 19. June 2006) and Nidwalden ( Law on Protection against Domestic Violence of May 21, 2010) enacted their own violence protection laws. The other cantons have included corresponding provisions in their police laws in particular.

The Zurich Violence Protection Act, for example, aims according to Section 1 (1) "the protection, security and support of people affected by domestic violence". In Section 2, domestic violence is considered to be “if a person's physical, sexual or psychological integrity is injured or endangered [etc.] in an existing or dissolved family or partnership relationship”. Protective measures are eviction from the house or from the apartment, rayon ban and ban on contact (§ 3); in serious cases, the police can take the endangered person into custody (Section 13). Advice and intervention centers exist as accompanying measures (Sections 15–18).

See also

literature

Web links

Individual evidence

  1. ↑ Kavemann, Barbara, Kreyssig, Ulrike (ed.): Handbook Children and Domestic Violence , Springer VS, 3rd, actual. and revised Edition 2013, ISBN 978-3-531-18096-0 , pp. 178f.
  2. ^ Framework for Model Legislation on Domestic Violence
  3. ↑ 210 German.pdf
  4. ↑ The full name of the law is Federal Law, with which the Execution Code, the Code of Civil Procedure, the Non-Disputes Act, the Judicial Bringing Act 1962, the Criminal Code, the Criminal Procedure Code 1975, the Penalty Act, the Redemption Act 1972, the Public Prosecutor Act, the Crime Victims Act, the Criminal Records Act, the Security Police Act and the General Civil Code are changed (Second Protection against Violence Act - 2. GeSchG), see Federal Law Gazette I No. 40/2009
  5. ^ Violence Protection Act and Intervention Systems in Austria , in: Kavemann, Barbara, Kreyssig, Ulrike (Hrsg.): Handbook Children and Domestic Violence , Springer VS, 3rd, updated. and revised Edition 2013, ISBN 978-3-531-18096-0 , pp. 178f.
  6. ↑ Rainer Loidl (Ed.): Violence in the family. Contributions to social work research, Volume 1, Böhlau Verlag 2013, ISBN 978-3-205-79466-0 , p. 207.
  7. ↑ Verena Weiss: The Austrian laws protecting against violence. An overview, in: SIAK-Journal - Journal for Police Science and Police Practice, 3/2009, pp. 49–54. doi : 10.7396 / 2009_3_G ( pdf )
  8. ↑ Rainer Loid (Ed.): Violence in the family. Contributions to social work research, Volume 1, Böhlau Verlag, Vienna / Cologne 2013, ISBN 978-3-205-79466-0 , p. 269.
  9. ^ A b Future Policy Award 2014: Ending violence against women and girls. In: World Future Council. World Future Council Foundation, 2014, accessed June 3, 2021 .
  10. ↑ Barbara Kavemann, Ulrike Kreyssig (Ed.): Handbook Children and Domestic Violence , VS Verlag für Sozialwissenschaften, 3rd, actual. and revised Edition 2013, ISBN 978-3-531-18096-0 , p. 261
  11. ↑ Ulrich Sachsse et al .: The Violence Protection Act , in: ders .: Trauma and Justice. Legal basics for psychotherapists - psychotherapeutic basics for lawyers , Verlag Schattauer, Stuttgart 2007, ISBN 978-3-7945-2567-6 , p. 177
  12. ↑ Ulrich Sachsse et al .: The Violence Protection Act , in: ders .: Trauma and Justice. Legal basics for psychotherapists - psychotherapeutic basics for lawyers , Verlag Schattauer, Stuttgart 2007, ISBN 978-3-7945-2567-6 , p. 178
  13. ↑ Werner Reinken in: BeckOK BGB, Hau / Poseck, 58th Edition, as of May 1, 2021, GewSchG § 1 Rn. 61.
  14. ↑ Section 51, Paragraph 3 of the Act on the Procedure in Family Matters and in Matters of Voluntary Jurisdiction (FamFG).
  15. ↑ Federal Law Gazette . Retrieved October 2, 2021 .
  16. ↑ a b Werner Reinken in: BeckOK BGB, Hau / Poseck, 58th Edition, as of May 1, 2021, GewSchG § 4 Rn. 1.
  17. ↑ a b BGH, decision of November 28, 2013, Az. 3 StR 40/13 , BeckRS 2014, 2525 = BGHSt 59, 94, guiding principle: "The conviction according to § 4 sentence 1 GewSchG because of a violation of an order according to § 1 Paragraph 1 sentence 1 GewSchG presupposes that the criminal court examines the substantive legality of the order and independently determines its factual requirements; it is not bound by the decision of the family court. "
  18. ↑ See also: BGH decision of July 26, 2016, Az. 3 StR 211/16 , BeckRS 2016, 15661, Rn. 9; BGH, decision of March 15, 2017, Az. 2 StR 270/16 , BeckRS 2016, 15661, Rn. 26.
  19. ↑ Werner Reinken in: BeckOK BGB, Hau / Poseck, 58th Edition, as of May 1, 2021, GewSchG § 4 Rn. 3.
  20. ↑ Expert opinion on the Protection against Violence Act by Michael Bock
  21. ↑ After a phase of literature evaluation, 23 qualitative interviews were held nationwide with experts from advisory and support services. In guided interviews lasting several hours, 32 men were questioned, half of which were selected at random and the other half specifically. The conclusion was formed by 266 quantitative interviews with randomly selected men. The quantitative survey was carried out orally. Specifically domestic violence was recorded in an additional written questionnaire that 190 respondents completed. The implementation of the study from 2002 to 2004 was entrusted to a non-university research association “Violence against Men”.
  22. ^ Prevention - domestic violence ( German ) Berlin police. Archived from the original on October 7, 2008. Retrieved January 18, 2021.
  23. ↑ E.g. for Lower Saxony: § 17 a eviction and residence ban in the case of domestic violence. Lower Saxony Police and Regulatory Authorities Act (NPOG). In: voris. Retrieved June 4, 2021 .